10. Aug 16

OLG Karlsuhe: Insurance intermediaries subject to strict documentation requirements and duty to inform in case of “Nettopolicen”

“Nettopolicen” are insurance policies with respect to which the premiums do not include commission for brokering the insurance contract. When concluding these insurance policies, insurance intermediaries have to point out and document that the separate payment arrangements continue to apply even if the policies are cancelled.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If an insurance intermediary concludes what are termed “Nettopolicen” with consumers, the former needs to observe special documentation requirements and a duty of disclosure. He must explicitly point out to consumers that the separate arrangements made regarding remuneration shall continue to apply even if the policy has been cancelled. Moreover, this information has to be accurately and comprehensively documented. That was the verdict of the Oberlandesgericht (OLG) Karlsruhe [Higher Regional Court of Karlsruhe] in a ruling from March 24, 2016 (Az.: 12 U 144/15). It held that failure to properly document the provision of information concerning Nettopolicen gives rise to the presumption in favour of the policyholder that this did not actually occur.

In the case in question, an insurance intermediary had brokered unit-linked pension insurance schemes for the policyholder. These were so-called “Nettopolicen” with respect to which the insurer does not factor in brokerage commission. Instead, separate payment arrangements are reached between the policyholder and the insurance intermediary. Due to the fact that these arrangements are legally independent of the insurance contract, the client is obliged to make payment even if the policy is altered or prematurely terminated.

After the policyholder in this case had paid the first instalments, he then prematurely terminated the policies and subsequently stopped the instalment payments to the intermediary. The latter ultimately sued for payment of the outstanding instalments, however the OLG Karlsruhe dismissed the claim. It stated that while a right to payment of the rest of the remuneration for brokerage services did exist in principle, it was incumbent on the intermediary when taking out Nettopolicen to clearly point out that the policyholder is obligated to pay the remuneration in full even in the event that the insurance contracts are prematurely terminated. The Court went on to say that this advice or information is subject to special documentation requirements and that these had not been complied with here. It ruled that it could be assumed that the policyholder would not have taken out the Nettopolicen if he had been aware of the costs. According to the OLG Karlsruhe, this gave rise to a claim for damages for the benefit of the policyholder on account of inadequate guidance, which he could then cite in response to the intermediary’s demand for payment. Leave to appeal to the Bundesgerichtshof, Germany’s Federal Court of Justice, has been granted.

Lawyers who are versed in the field of insurance law can provide further assistance should contentious insurance issues arise.

For more informations: http://www.grprainer.com/en/legal-advice/banking-law/insurance-law.html

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